Jurist: 'World Is Losing Respect for Human Rights'

The world has undeniably changed since the September 11 attacks triggered George W. Bush's declaration of a global war on terror. One of the biggest consequences, says jurist Arthur Chaskalson, has been a widespread decline in respect for basic human rights. Chaskalson, a former chief justice of South Africa, was part of the legal team that defended Nelson Mandela before the African National Congress leader's 1964 sentence to life imprisonment for trying to overthrow the white minority government. Chaskalson, 76, now leads the International Commission of Jurists, a human rights advocacy group consisting of lawyers and academics from 62 different countries. The commission, based in Geneva, Switzerland, provides legal assistance to ensure that basic freedoms are valued in a new era of fast-changing global policies. Visiting Washington for the American Civil Liberties Union national membership conference, Chaskalson sat down with NEWSWEEK's Daniel Stone. Excerpts:

NEWSWEEK: Looking at the current state of global affairs, with humanitarian and political crises, what issue is of the most concern?
Arthur Chaskalson: One of the central issues confronting us today is an erosion of 50 years of development of human rights standards. If you go back to the time of the collapse of the Nazi empire and the Second World War and the establishment of the United Nations, the world there realized that what had happened should not be allowed to happen again. And so you find [respect for human rights] in the U.N. charter and in the world of U.N. conventions and treaties … Since 9/11 there has been a reversal. In relation to counterterrorism issues and the so-called war against terror, there has been a movement to erode basic protections and basic human rights values.

Are you speaking about America in particular?
Not only America. I've been part of a project run by the International Committee on Jurists from Geneva called the Eminent Jurist Panel. We have heard from over 39 countries; we've held public hearings and met people. You see a pattern, particularly in countries that have a record of not respecting human rights.

How have rights changed over the past few decades?
In different parts of the world, we see departure [from] what were accepted as basic principles. Let's take torture. People are now debating in some parts of the world whether torture is acceptable. It's something which is beyond discussion, or should be beyond discussion. In international law it's nonnegotiable. It's something that infects your whole legal system and brings disgrace to those who practice it and brings disgrace to the country that tolerates it … I'm not talking only about Guantánamo Bay; I'm talking about many different places.

Like where?
In Pakistan, in India, in Malaysia, in the Middle East, in parts of Africa. The story is the same.

You mentioned 9/11 and Guantánamo. What's America's role in this?
I think that some countries see what has happened in Guantánamo Bay and other policies of the U.S. as giving a green light to them to do what they like. Whether that's right or not, that's what they do.

So you advocate shutting down Guantánamo.
What needs to be shut down is the practices: the holding people incommunicado, not bringing them to trial, not allowing them access to lawyers. That whole structure is something that has harmed America's image.

Military commanders and top government officials counter that argument by saying that tough interrogation techniques can often be vital to national security.
The argument that the ordinary law is not good enough is an argument which has goes back generations. If you look back at all repressive measures, you find that they tend to be justified on the basis that the law cannot deal with them, therefore we have to adopt repressive measures. Later generations see that that's wrong. The existing structures have measures that enable you to prosecute people, to bring people to trial. If they are guilty you can prove it. You don't need to hold people incommunicado for long periods of time.

Are there specific violations of human rights that stand out as being of particular concern?
What I think stands out is the holding of people without access to lawyers and the secrecy surrounding it. You see that in Pakistan, where people just disappear for some time. Sometimes they don't come back; sometimes they do. You see that in other countries, where people are just removed and because they don't have access and because of the secrecy around it, they are exposed to torture. Governments deny that they torture, but if you hold people incommunicado and if you close off access to the outside world and if you expose people to simply their interrogators, they become very vulnerable. There are too many stories and too much credible evidence that torture is being practiced for it to just be rejected out of hand.

If you found yourself face to face with U.S. military commanders who approve the measures you're talking about, what advice would you give?It would be presumptuous for me to enter into how to deal with the threat of terrorism. What I do know is that measures that are unjust do not promote justice. You harm your own society and your own values.

How do you define a terrorist? Or terrorism?
The international community has not been able to reach a consensus on exactly who are and who are not terrorists, because there are many complex issues around it. Curiously, terrorism first entered the English language … if you look in the Oxford dictionary, terrorism relates to state action … It's now being turned around and being used by people to resist state power. I think the core element of terrorism is to instill fear in a population by attacking civilian targets and threatening life. That's the core of what terrorism is: it's to promote fear.

By that definition, would Mandela have been considered a terrorist?
Certainly not. He wouldn't have because the policies of [Mandela's] African National Congress were not to cause loss of life. In fact, their policies were quite clear. They were planning an armed struggle, but the targets would be against property and not against life. And it would be done in a way that would not result in loss of life.

People were killed in the process.
The only person who died before Mr. Mandela went to jail was somebody who had been killed when he set off an explosion. I don't know of anybody who had died before Mr. Mandela went to prison. Yes, there were people who died. But people die in war, don't they?

So his efforts were a sort of war against the South African government at the time?
If you study his trial, you'll see that his defense was really to put apartheid on trial—to say that all the actions of the African National Congress were legitimate, that no other avenues had hope. There was a massive oppression that the majority of the people were denied rights, the majority of people were marginalized. There was a government policy directed at perpetuating that marginalization, depriving them of access to education and a decent life and preventing them using any political means to change their situation. What do you do in that situation?

You see that type of thinking in other parts of the world, namely populations in the Middle East that say they feel disenfranchised and have no other avenue that violence. Do you find a parallel in that argument?
That parallel has been made, but I'm not sure it's entirely accurate. I think that the difference is that within South Africa at that stage, the people who were not white had no political rights whatsoever. They were living in South Africa, and the policy of the government of South Africa was to condemn them to perpetual forms of marginalization within the one country. I think that the conflict between Palestine and Israel is extraordinarily more complex, but I don't think the analogy is the same.

You'll be speaking to young people in Washington about the state of world affairs. What advice will you give them?
I think it's really important to struggle for rights and for the enforcement of rights and the respect of those rights and the dignity of everyone. That's fundamental to a good society.